Insights High Court declines to order that hearing concerning application by the Attorney General to prevent a certain broadcast by BBC should be held in private


The BBC wants to broadcast a programme about “X”, which is to include allegations that: (i) X is a dangerous extremist and misogynist who physically and psychologically abused two former female partners; (ii) that X is also a covert human intelligence source (variously referred to as a “CHIS” or an “agent”) for the Security Service (MI5); (iii) that X told one of these women that he worked for MI5 to terrorise and control her; and (iv) that MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS. The BBC says that the broadcast and the identification of X by name is in the public interest.

The Attorney General has applied for an injunction to prevent the BBC from broadcasting the programme. The AG’s stance has been that she can neither confirm nor deny that X is or was a CHIS, other than in closed proceedings under the Justice and Security Act 2013. She submits, however, that irrespective of the truth of the allegation, the BBC’s proposed broadcast would: (i) involve a breach of confidence or false confidence; (ii) create a real and immediate risk to the life, safety and private life of X; and (iii) damage the public interest and national security. The AG invites the court to restrain a proposed broadcast that she says would be a breach of confidence by the BBC, and to grant relief to protect the rights of X under Articles 2, 3 and 8 of the European Convention on Human Rights.

The AG has also made clear that there would be no objection to a broadcast making allegations about MI5’s use and management of agents without identifying X, or to a broadcast making allegations about the conduct and dangerousness of X without identifying him as an alleged MI5 agent.

The AG’s application for an interim injunction is due to be heard on 1 and 2 March 2022. Following a hearing on 16 February 2022, Mr Justice Chamberlain determined that part of the hearing would take place “in closed”, i.e. in the absence of the BBC and its legal team, under s 6 of the 2013 Act.

The AG applied for an order that the open part of the hearing on 1 and 2 March, in which X would obviously not be named, should also be held in private, meaning that the public would be told nothing about the nature of the proposed broadcast or about the court proceedings, except that, as proposed by the AG, “the [Attorney] is seeking an injunction against the [BBC] to prevent it publishing a news report which the [Attorney] submits would damage national security and breach Convention rights, without sufficient countervailing public interest, and which the [BBC] says is in the public interest to broadcast”.

Chamberlain J rejected the AG’s arguments and found that the open part of the proceedings should be conducted in public. Chamberlain J said that the AG had not established a sufficiently compelling reason to depart from the principle of open justice.

First, there was no apparent legal basis for restraining the BBC from broadcasting a story that did not identify X. Therefore, there was no good reason for holding the open part of the interim relief hearing in private, provided nothing was said that might directly or indirectly identify X during that hearing. The AG had not pleaded an explanation as to why she would be entitled to restrain publication of the allegation that an unidentified MI5 agent had acted in the way alleged. The claim was put only on the basis of the BBC identifying X. There was also no pleading or evidence to suggest that publication of the story without identifying X would result in a risk to X’s life or safety or would affect his right to respect for private life.

Secondly, some elements of the story, e.g., that the Government was trying to prevent the story from being broadcast and that the BBC considered the story to be in the public interest, had already been published in an article in The Daily Telegraph on 21 January 2022. The article also quoted what appeared to be a Government source stating that “The programme would be a massive compromise for our security”. The source also reportedly said that identifying the spy concerned would have “very serious consequences for the BBC” and would be “a risk to people’s lives”. The contents of the report were widely repeated in other press and media outlets.

The AG submitted that the source had acted “without authority”. Chamberlain J said that whether this was correct, and if so without whose authority, was not a matter that could be decided at this stage. The witness evidence submitted so far certainly did not establish that the statement was made “without authority”, as it did not identify: (i) which (named) individuals had authority to authorise such statements; and (ii) which (named) individuals had said what about whether such authority was given, as required by CPR 32 PD para 18.2. The fact that a Government source (whether acting with or without authority) appeared to have briefed the press about the case had an impact on the extent to which it was “necessary to sit in private to secure the proper administration of justice” within CPR rule 39.3. In any event, the fact remained that the information was in the public domain and the question of damage to national security had to be considered against that background.

Thirdly, no convincing case had been made out that publication of a story that did not identify X would cause real damage to national security. Chamberlain J recognised that the assessment of damage being caused to national security came from a senior and experienced MI5 officer and that, in general, such assessment should be owed considerable respect. However, he said, the invocation of national security was not always conclusive. In any event, the court was entitled and required to consider carefully the quality of the reasons given for any assessment before deciding what weight to give to it.

Considering the MI5 officer’s assessment, which mostly dealt with the risks arising from the naming of X, Chamberlain J held that, overall, the AG had not adduced convincing or compelling evidence to establish the claimed risk to national security from disclosure.

Fourthly, in Chamberlain J’s view, the public interest in open justice outweighed any risks established by the AG’s evidence on the public interests said to favour privacy. The impact on the principle of open justice of allowing the AG’s application was likely to be very substantial indeed. It would mean that the press, media and public would be unable to understand the factual context of the arguments deployed and form an informed view about the correctness of the decision reached. The relief the AG was seeking involved an interference with the freedom of expression of the BBC and, more importantly, the correlative right of members of the public to receive the information. Ultimately, the courts would have to decide whether the AG had adduced sufficient reasons for the interference, but the courts are properly subject to criticism and that could not be voiced if the key facts were not publicly known.

Accordingly, Chamberlain J held that the open part of the interim relief hearing would take place in public, in circumstances where the public could be informed about many of the key aspects of the case, except for X’s identity. (Her Majesty’s Attorney General for England and Wales v British Broadcasting Corporation [2022] EWHC 380 (QB) (24 February 2022) — to read the judgment in full, click here).